Fair concerns, Maggie Tarver

Maggie Tarver of the New Zealand Society of Authors tracks the Google Library Project and what it means for our authors.

The Google Library Project has been in development several years. The US Copyright Office first became aware of it in 2003, and, in 2005, The Authors Guild and the Association of American Publishers, together with certain individual authors and publishers, sued Google for digitising books without the permission of the rights-holders. They claimed it was infringement of copyright.

Google’s defence was that digitising books but making only excerpts of those digital copies available online amounted to “fair use” (not to be confused with “fair dealing” in this country). The issue of “fair use” wasn’t resolved since authors and publishers agreed on an out-of-court settlement with Google Inc.

Thus the Google Book Settlement came into being.

The settlement itself is a hugely complex and confusing document totalling more than 300 pages (including appendices) that has baffled, intrigued and challenged lawyers, authors, publishers and governments throughout the world. The New Zealand Society of Authors (PEN NZ Inc) (NZSA) published notices about the proposed settlement in its February/March edition of The New Zealand Author, but at that time we believed it applied only to books published in the United States.

Now we know that the Berne Convention, to which New Zealand and the US are signatories, means every book published in New Zealand between 1923 and 5 January 2009 is included.

How does this class settlement affect New Zealand rights-holders? Right now there’s no clear answer to that question.

The fairness hearing scheduled to take place in the US District Court on 7 October 2009 was adjourned on the basis that “The current settlement agreement raises significant issues, as demonstrated not only by the number of objections but also by the fact that the objectors include countries, states, non-profit organisations and prominent authors and law professors. Clearly fair concerns have been raised.” Eighty-two domestic and 295 foreign class-member objectors filed with the US court, and 10 domestic and three foreign amicus objectors.

But what does the original settlement look like and what are its implications for New Zealand rights-holders?

Firstly, rights-holders were required to “opt out” by 4 September 2009 if they didn’t want to be part of the settlement. This is a reversal of normal copyright procedure in which rights-holders retain their copyright unless they agree otherwise; under the Google Settlement rights-holders give up their copyright by default unless they opt out.

NZSA believes the settlement should be “opt in” rather than “opt out”, giving rights-holders back control of their copyright. Google stated it would honour rights-holders’ requests not to digitise books, but under the settlement there is no obligation for it to do so. Rights-holders who opted out retained their right to sue Google if it went on to digitise their books.

Rights-holders who didn’t opt out by 4 September are deemed “in”. Once in, Google has the right to digitise their book/s, make snippets or previews available online through its book search platform, sell advertising around the search results, sell access to online sales and sell whole books on subscription basis to institutions such as libraries. Rights-holders give up their right to sue Google now and in the future.

In return, Google will make a one-off payment of around US$60 for any book it digitised before 5 May 2009, and – minus administration/running costs for establishing the Book Rights Registry to manage the project – will pay rights-holders 63 per cent of any income generated as a direct result of digitising their book.

No-one has any idea what level of revenue could be generated, nor what the ongoing costs of the Book Rights Registry might be. We believe this settlement is unlikely to generate significant income for anyone. To receive any payment from Google, rights-holders must “claim” their books. If a rights-holder does nothing, they are deemed, as in the settlement, to have given Google the rights described above, but are not entitled to any payment now or in the future.

Secondly, the settlement deems out-of-print any book not commercially available in the US. Google can then digitise the book and, without rights-holder permission, make 20 per cent of it available online through its own search facility at any one time. This will, of course, apply to most New Zealand books, regardless of whether they are in print here or not. For each search conducted, Google can make a different 20 per cent of the book available. In theory, then, five searches could get me the whole book for free. This search facility is only available in the US.

NZSA feels strongly that the settlement should not treat New Zealand authors so unfairly – they should have the same rights as US rights-holders.

The settlement gives Google non-exclusive electronic rights, and in theory anyone else who wanted to attempt a similar class settlement and digitally copy works could do so. Likewise, rights-holders could offer their electronic rights to anyone else who might be willing to take them. However, given Google’s head-start and the sheer scope of their market power, they have probably effectively removed the potential for any competition. The settlement is the subject of US anti-trust investigations.

The NZSA objected to the original settlement on the grounds that the court exceeded its jurisdiction and misapplied the Berne Convention; that its author sub-class isn’t applicable to our authors; that insufficient notice was given and inadequate compensation is being offered; that it over-rides contractual relationships between author and publisher; that it treats non-US authors and the non-US public unfairly; and that the significant market power the settlement gives Google raises an anti-trust issue.

At a status conference held in October, the judge declared the current settlement no longer on the table and set 9 November as the new date for submitting the amended version. The deadline for rights-holders to file for cash payments is now 5 June 2010. Rights-holders will get a new opportunity to opt in or out.

The Google Book Settlement will go ahead in one form or another, with NZSA doing its best to ensure New Zealand rights-holders are treated fairly. Meanwhile Google continues digitising books at an estimated rate of 1000 per day.

Update: A revised settlement will now allow New Zealand authors and publishers to sue Google if it scans, and makes digitally available, books published before 5 January 2009.